People v. Wadkins CA5 ( 2021 )

Filed 4/14/21 P. v. Wadkins CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F079116
Plaintiff and Respondent,
(Super. Ct. No. VCF055940-00)
v.
WAYNE ELDON WADKINS, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Tulare County. Joseph A.
Kalashian, Judge. (Retired Judge of the Tulare Sup. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.)
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General,
Louis M. Vasquez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
BACKGROUND
In 2000, defendant Wayne Eldon Wadkins was charged with two counts of
committing a lewd or lascivious act upon a child under 14 years of age (Pen. Code,1
§ 288, subd. (a) [counts 1 & 2]). As to both counts, the information alleged he was
convicted in 1992 of committing a lewd or lascivious act upon a child under 14 years of
age, a qualifying “strike” offense under the Three Strikes law (§ 1170.12,
subd. (c)(2)(A)) and a serious felony (§ 667, subd. (a)(1)); was convicted in 1992 of a
second count of committing a lewd or lascivious act upon a child under 14 years of age
and continuous sexual abuse of a child, two more qualifying “strike” offenses (§ 1170.12,
subd. (c)(2)(A)); and previously served a prison term (§ 667.5, subd. (b)). The
information further alleged defendant was subject to the habitual sexual offender statute
(§ 667.71) as well as enhanced punishment under sections 667.51, subdivision (a), and
667.6, subdivision (a). Following a trial, he was found guilty as charged and all special
allegations were found true. Defendant received an aggregate sentence of 155 years to
life: 25 years to life, tripled pursuant to the Three Strikes law, plus five years for the
prior serious felony enhancement, on count 1; and a consecutive 25 years to life, tripled
pursuant to the Three Strikes law, on count 2.
On January 29, 2019, defendant filed a pro. per. petition for recall of sentence
under section 1170.91. He stated he received “an indeterminate term of life
imprisonment” in 2000 and was “currently serving a draconian sentence of 155 years to
life.” The petition further specified:
“[Defendant] was a military Air-[F]orce man when he was 21 years old,
and while he was making a delivery of a [b]omb to a storage area on the
way back to the barracks he suffered a motorc[y]cle accident, was
transported to the hospital where he spent 2 weeks, which caused him to
suffer severe and permanent personal injuries, including severe trauma pain
1 Subsequent statutory citations refer to the Penal Code.
2.
and [i]njury to his [h]ead, with a stiff neck injured with headaches for life.”
(Boldface omitted.)
The court summarily denied the recall petition. On appeal, defendant contends the
petition “met the facial requirements for a hearing” under section 1170.91 and the court
“erred in denying it before appointing counsel to represent [him]” and holding a public
hearing. (Boldface & capitalization omitted.) We affirm.
DISCUSSION
“When the Legislature first enacted section 1170.91, effective January 1, 2015, it
contained a single paragraph creating a requirement that a sentencing court consider
mental health and substance abuse problems stemming from military service as a
mitigating factor when imposing a determinate term under section 1170, subdivision (b).”
(People v. King (2020) 52 Cal.App.5th 783, 788 (King).) The statute provided:
“If the court concludes that a defendant convicted of a felony offense is, or
was, a member of the United States military who may be suffering from
sexual trauma, traumatic brain injury, post-traumatic stress disorder,
substance abuse, or mental health problems as a result of his or her military
service, the court shall consider the circumstance as a factor in mitigation
when imposing a term under subdivision (b) of [s]ection 1170. This
consideration does not preclude the court from considering similar trauma,
injury, substance abuse, or mental health problems due to other causes, as
evidence or factors in mitigation.” (Former § 1170.91, now § 1170.91,
subd. (a).)
“In 2018, the Legislature amended section 1170.91 to provide relief for former or
current members of the military who were sentenced before January 1, 2015, and did not
have their mental health and substance abuse problems considered as factors in mitigation
during sentencing. [Citation.]” (King, supra, 52 Cal.App.5th at p. 788.) Section
1170.91, subdivision (b)(1) provides:
“A person currently serving a sentence for a felony conviction,
whether by trial or plea, who is, or was, a member of the United States
military and who may be suffering from sexual trauma, traumatic brain
injury, post-traumatic stress disorder, substance abuse, or mental health
problems as a result of his or her military service may petition for a recall
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of sentence, before the trial court entered the judgment of conviction in his
or her case, to request resentencing pursuant to subdivision (a) if the person
meets both of the following conditions:
“(A) The circumstance of suffering from sexual trauma, traumatic
brain injury, post-traumatic stress disorder, substance abuse, or mental
health problems as a result of the person’s military service was not
considered as a factor in mitigation at the time of sentencing.
“(B) The person was sentenced prior to January 1, 2015. This
subdivision shall apply retroactively, whether or not the case was final as of
January 1, 2015.”
Section 1170.91, subdivision (b)(3) provides:
“Upon receiving a petition under this subdivision, the court shall
determine, at a public hearing held after not less than 15 days’ notice to the
prosecution, the defense, and any victim of the offense, whether the person
satisfies the criteria in this subdivision. At that hearing, the prosecution
shall have an opportunity to be heard on the petitioner’s eligibility and
suitability for resentencing. If the person satisfies the criteria, the court
may, in its discretion, resentence the person following a resentencing
hearing.”
Assuming, arguendo, the trial court should have appointed an attorney to represent
defendant and held a public hearing, the court’s failure to do so did not prejudice
defendant. It is not “reasonably probable that [defendant] would have obtained a more
favorable result” had the court done so. (King, supra, 52 Cal.App.5th at p. 790.)
“The plain language of [section 1170.91] is clear. A petitioner meeting section
1170.91[,] subdivision (b)(1)’s requirements may obtain ‘resentencing pursuant to
subdivision (a).’ [Citations.] In turn, subdivision (a) of the statute provides that the trial
court shall consider mitigating factors related to the defendant’s military service ‘when
imposing a term under subdivision (b) of [s]ection 1170.’ [Citation.] In other words,
section 1170.91 only applies to determinate terms imposed under section 1170,
subdivision (b). [Citation.]” (People v. Estrada (2020) 58 Cal.App.5th 839, 842-843,
italics omitted; see King, supra, 52 Cal.App.5th at p. 788 [§ 1170, subd. (b) “describes
the trial court’s exercise of sentencing discretion to choose an upper, middle or lower
4.
determinate term based on factors in mitigation and aggravation”].) Defendant explicitly
acknowledges in his petition that his sentence is indeterminate. The record demonstrates
defendant received an aggregate sentence of 155 years to life. Both straight life
sentences and sentences of some number of years to life are indeterminate sentences not
subject to the Determinate Sentencing Act, section 1170 et seq. (See People v. Felix
(2000) 22 Cal.4th 651, 657-659.) Section 1168, subdivision (b) governs indeterminate
sentencing. (People v. Felix, supra, at p. 655.) “Had the Legislature intended for section
1170.91 to apply to indeterminate terms imposed under section 1168, subdivision (b), it
would not have specifically limited the statute’s application to terms imposed under
section 1170, subdivision (b).” (People v. Estrada, supra, 58 Cal.App.5th at p. 843.)
Since defendant would have been ineligible for relief under section 1170.91, the
court’s purported error was not prejudicial. Defendant has not established reversible
error.
DISPOSITION
The order denying defendant’s petition for recall of sentence is affirmed.
DETJEN, Acting P.J.
WE CONCUR:
SNAUFFER, J.
DE SANTOS, J.
5.